PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

NIGEL RICHARD GATWARD, and U

AUNG WIN,accused, NIGEL RICHARD GATWARD, accused-appellant.REGALADO, J.: The accession into our statute books on December 31, 1993 of Republic Act No. 7659,[1] which authorized the re-imposition of the death penalty and amended certain provisions of theRevised Penal Code and the Dangerous Drugs Act of 1972, raised the level of expectations in thedrive against criminality. As was to be expected, however, some innovations therein needed theintervention of this Court for a judicial interpretation of amendments introduced to thedangerous drugs law.[2] The same spin-off of novelty, this time by the new provision fixing the duration of reclusionperpetua which theretofore had not been spelled out with specificity in the Revised Penal Code,produced some conflicting constructions, more specifically on whether such penalty is divisibleor indivisible in nature. That is actually the major issue in these cases, the factual scenario andthe culpability of both accused having been. The antecedents being undisputed, and with a careful review and assessment of the recordsof this case having sustained the same, we reproduce hereunder the pertinent parts of thedecision of the trial court jointly deciding the criminal cases separately filed against each of theaccused. Although only one of them, Nigel Richard Gatward, has appealed his conviction to us,for reasons hereinafter explained we shall likewise include the disposition by the court a quo ofthe case against U Aung Win. 1. The lower court stated the cases against the accused, the proceedings therein and its findings thereon, as follows:In Criminal Case No. 94-6268, the accused is charged with violating Section 4 of Republic ActNo. 6425, the Dangerous Drugs Act of 1972, allegedly in this manner:That on or about the 31st (sic) day of August 1994, in the vicinity of the Ninoy AquinoInternational Airport, Pasay City, x x x , the above-named accused not being authorized by law,did then and there wilfully, unlawfully and feloniously transport heroin (2605.70 grams and2632.0 grams) contained in separate carton envelopes with a total weight of 5237.70 gramswhich is legally considered as a prohibited drug. (Information dated Sept. 14, 1994)In Criminal Case No. 94-6269, the accused is indicted for transgressing Section 3 of theDangerous Drugs Act of 1972, purportedly in this way:That on or about the 30th day of August 1994, at the arrival area of Ninoy Aquino InternationalAirport, Pasay City, x x x, the above-named accused not being authorized by law, did, then andthere wilfully, unlawfully and feloniously import and bring into the Philippines 5579.80 grams ofheroin which is legally considered as a prohibited drug. (Information also dated Sept. 14, 1994)Accused Nigel Richard Gatward in Criminal Case No. 94-6268 pleaded not guilty of the chargewhen arraigned.On the other hand, accused U Aung Win in Criminal Case No. 94-6269, assisted by Atty. WillyChan of the Public Attorneys Office of the Department of Justice, entered a plea of guilty of thecrime charged upon his arraignment. Since it is a capital offense, the Court asked searchingquestions to determine the voluntariness and the full comprehension by the accused of theconsequences of his plea. The accused manifested that he was entering a plea of guiltyvoluntarily without having been forced or intimidated into doing it. The nature of the charge wasexplained to him, with emphasis that the offense carries with it the penaltyof reclusion perpetua to death and his pleading guilty of it might subject him to the penalty ofdeath. The accused answered that he understood fully the charge against him and theconsequences of his entering a plea of guilty. The defense counsel likewise made an assurance inopen court that he had explained to U Aung Win the nature of the charge and the consequencesof his pleading guilty of it.Having been thus apprised, the accused still maintained his plea of guilty of the offense chargedagainst him. Since the offense admitted by him is punishable by death, the case was still set fortrial for the reception of the evidence of the prosecution to prove the guilt and the degree ofculpability of the accused and that of the defense to establish mitigating circumstances.Upon motion of the prosecution without any objection from the defense, these two cases wereconsolidated and tried jointly, since the offenses charged arose from a series of related incidentsand the prosecution would be presenting common evidence in both.At about 3:30 in the afternoon of August 30, 1994, accused U Aung Win, a passenger of TGFlight No. 620 of the Thai Airways which had just arrived from Bangkok, Thailand, presented hisluggage, a travelling bag about 20 inches in length, 14 inches in width and 10 inches inthickness, for examination to Customs Examiner Busran Tawano, who was assigned at theArrival Area of the Ninoy Aquino International Airport (NAIA) in Pasay City. The accused alsohanded to Tawano his Customs Declaration No. 128417 stating that he had no articles todeclare. When Tawano was about to inspect his luggage, the accused suddenly left, proceedingtowards the direction of Carousel No. 1, the conveyor for the pieces of luggage of the passengersof Flight No. 620, as if to retrieve another baggage from it.After having inspected the luggages of the other incoming passengers, Tawano became alarmedby the failure of U Aung Win to return and suspected that the bag of the accused containedillegal articles. The Customs Examiner reported the matter to his superiors. Upon theirinstructions, the bag was turned over to the office of the Customs Police in the NAIA for x-rayexamination where it was detected that it contained some powdery substance. When opened, thebag revealed two packages containing the substance neatly hidden in between itspartitions. Representative samples of the substance were examined by Elizabeth Ayonon, achemist of the Crime Laboratory Service of the Philippine National Police (PNP) assigned at theArrival Area of the NAIA, and by Tita Advincula, another chemist of the PNP Crime LaboratoryService at Camp Crame, and found to be positive for heroin. The two chemists concluded that theentire substance, with a total weight of 5,579.80 grams, contained in the two packages found inthe bag of U Aung Win, is heroin.A manhunt was conducted to locate U Aung Win. The personnel of the Bureau of Immigrationand Deportation in the NAIA were asked to place the accused in the hold order list. The offices ofthe different airlines in the airport were also alerted to inform the Enforcement and SecurityService and the Customs Police Division of the NAIA of any departing passenger by the name of UAung Win who would check in at their departure counters. A team was likewise sent to the ParkHotel in Belen St., Paco, Manila, which accused U Aung Win had indicated in his CustomsDeclaration as his address in the Philippines. But the accused was not found in that hotel.At about 7:45 p.m. of the same date of August 30, 1994, Rey Espinosa, an employee of theLufthansa Airlines, notified the commander of the NAIA Customs Police District Command that acertain Burmese national by the name of U Aung Win appeared at the check-in counter of theairline as a departing passenger. Immediately, a team of law enforcers proceeded to the DepartureArea and apprehended the accused after he had been identified through his signatures in hisCustoms Declaration and in his Bureau of Immigration and Deportation Arrival Card. CustomsExaminer Tawano also positively identified the accused as the person who left his bag with himat the Arrival Area of the NAIA.During the investigation of U Aung Win, the agents of the Customs Police and the NarcoticsCommand (NARCOM) gathered the information that the accused had a contact in Bangkok andthat there were other drug couriers in the Philippines. Following the lead, a team of lawmen,together with U Aung Win, was dispatched to the City Garden Hotel in Mabini St., Ermita,Manila, to enable U Aung Win to communicate with his contact in Bangkok for furtherinstructions. While the police officers were standing by, they noticed two persons, a Caucasianand an oriental, alight from a car and enter the hotel. U Aung Win whispered to Customs PoliceSpecial Agent Edgar Quiones that he recognized the two as drug couriers whom he saw talkingwith his contact in Bangkok named Mau Mau. The members of the team were able to establishthe identity of the two persons as accused Nigel Richard Gatward and one Zaw Win Naing, aThailander, from the driver of the hotel service car used by the two when they arrived in thehotel. It was gathered by the law enforcers that Gatward and Zaw Win Naing were scheduled toleave for Bangkok on board a KLM flight.On August 31, 1994, operatives of the NAIA Customs Police mounted a surveillance operation atthe Departure Area for Gatward and Zaw Win Naing who might be leaving the country. At about7:45 p.m. of the same date, Special Agent Gino Minguillan of the Customs Police made averification on the passenger manifest of KLM Royal Dutch Airlines Flight No. 806, bound forAmsterdam via Bangkok, which was scheduled to depart at about 7:55 that evening. He foundthe name GATWARD/NRMR listed therein as a passenger for Amsterdam and accordinglyinformed his teammates who responded immediately. Customs Police Captain Juanito Algeniorequested Victorio Erece, manager of the KLM airline at the NAIA, to let passenger Gatwarddisembark from the aircraft and to have his checked-in luggage, if any, unloaded. The manageracceded to the request to off-load Gatward but not to the unloading of his check-in bag as theplane was about to depart and to do so would unduly delay the flight. However, Erece made anassurance that the bag would be returned immediately to the Philippines on the first availableflight from Bangkok. Upon his disembarkment, Gatward was invited by the police officers forinvestigation.At about 3:00 oclock in the afternoon of September 1, 1994, Gatwards luggage, a travelling bagalmost of the same size as that of U Aung Win, was brought back to the NAIA from Bangkokthrough the Thai Airways, pursuant to the request of Erece which was telexed in the evening ofAugust 31, 1994, to the KLM airline manager in Bangkok. Upon its retrieval, the law enforcerssubjected the bag to x-ray examinations in the presence of accused Gatward and some Customsofficials.It was observed to contain some powdery substance. Inside the bag were two improvisedenvelopes made of cardboard each containing the powdery substance, together with manyclothes. The envelopes were hidden inside the bag, one at the side in between a double-wall, theother inside a partition in the middle. Upon its examination by Chemists Ayonon and Advinculapursuant to the request of Police Senior Inspector John Campos of the NARCOM, the powderysubstance contained in the two cardboard envelopes, with a net weight of 5,237.70 grams, wasfound to be heroin.[3] The court below made short shrift of the defense raised by herein appellant. Apart from thewell-known rule on the respect accorded to the factual findings of trial courts because of thevantage position they occupy in that regard, we accept its discussion thereon by reason of itsclear concordance with the tenets of law and logic. Again we quote:Accused Gatward denied that the bag containing the heroin was his luggage. However, that thesaid bag belongs to him is convincingly shown by the fact that the serial number of the luggagetag, which is KL 206835, corresponds to the serial number of the luggage claim tag attached tothe plane ticket of the accused.Moreover, as testified to by Manager Erece of the KLM airline, theluggage of Gatward located in Container No. 1020 of KLM Flight No. 806 was the same luggagewhich was returned to the NAIA on September 1, 1994, on board Thai Airways TG Flight No. 620,pursuant to the request made by him to the KLM manager in Bangkok. The testimony of Ereceshould be given weight in accordance with the presumption that the ordinary course of businesshas been followed.(Sec. 3(q), Rule 131, Revised Rules on Evidence). No circumstance was shownby the defense which would create a doubt as to the identity of the bag as the luggage of Gatwardwhich he checked in for KLM Flight No. 806 for Amsterdam with stopover in Bangkok.Accused Gatward was present during the opening of his bag and the examination of itscontents. He was also interviewed by some press reporters in connection with the prohibited drugfound in the bag. Gatward did not then disclaim ownership of the bag and its heroincontents. His protestations now that the bag does not belong to him should be deemed as anafterthought which deserves no credence.Gatward posited that he checked in a different bag when he boarded KLM Flight No. 806,explaining that upon his apprehension by the agents of the NAIA Customs Police, he threw awaythe claim tag for the said luggage. He alleged that the said bag contained, among other things,not only important documents and papers pertaining to his cellular phone business in thepursuit of which he came to the Philippines, but also money amounting to L 1,500.00. Gatwardstressed that the bag did not have any illegal articles in it. If this were so, it was unusual for him,and certainly not in accordance with the common habit of man, to have thrown away the claimtag, thereby in effect abandoning the bag with its valuable contents. Not having beencorroborated by any other evidence, and being rendered unbelievable by the circumstancesaccompanying it as advanced by him, the stand of accused Gatward that his luggage wasdifferent from that which contained the 5,237.70 grams of heroin in question commands outrightrejection.[4] The trial court was also correct in rejecting the challenge to the admissibility in evidence ofthe heroin retrieved from the bag of appellant.While no search warrant had been obtained forthat purpose, when appellant checked in his bag as his personal luggage as a passenger of KLMFlight No. 806 he thereby agreed to the inspection thereof in accordance with customs rules andregulations, an international practice of strict observance, and waived any objection to awarrantless search. His subsequent arrest, although likewise without a warrant, was justifiedsince it was effected upon the discovery and recovery of the heroin in his bag, or in flagrantedelicto. The conviction of accused U Aung Win in Criminal Case No. 94-6269 is likewiseunassailable. His culpability was not based only upon his plea of guilty but also upon theevidence of the prosecution, the presentation of which was required by the lower court despitesaid plea. The evidence thus presented convincingly proved his having imported into this countrythe heroin found in his luggage which he presented for customs examination upon his arrival atthe international airport. There was, of course, no showing that he was authorized by law toimport such dangerous drug, nor did he claim or present any authority to do so. 2. It is, however, the penalties imposed by the trial court on the two accused which thisCourt cannot fully accept. This is the presentation made, and the rationalization thereof, by thecourt below:According to Section 20 of the Dangerous Drugs Act of 1972, as amended by Republic Act No.7659, the penalties for the offenses under Sections 3 and 4 of the said Act shall be applied if thedangerous drugs involved, with reference to heroin, is 40 grams or more. Since the heroin subjectof each of these two cases exceeds 40 grams, it follows that the penalty which may be imposed oneach accused shall range from reclusion perpetua to death.To fix the proper penalty, it becomes necessary to determine whether any mitigating oraggravating circumstance had attended the commission of the offenses charged against theaccused. With respect to Gatward, no aggravating or mitigating circumstance was shown whichmight affect his criminal liability. Relative to U Aung Win, no aggravating circumstance waslikewise established by the prosecution. However, the voluntary plea of guilty of the said accused,which was made upon his arraignment and therefore before the presentation of the evidence ofthe prosecution, should be appreciated as a mitigating circumstance.Under Article 63 of the Revised Penal Code, which prescribes the rules for the application ofindivisible penalties, in all cases in which the law prescribes a penalty composed of twoindivisible penalties, the lesser penalty shall be applied, if neither mitigating nor aggravatingcircumstances are present in the commission of the crime, or if the act is attended by amitigating circumstance and there is no aggravating circumstance. However, this rule may nolonger be followed in these cases, although the penalty prescribed by law is reclusion perpetua todeath, since reclusion perpetua, which was an indivisible penalty before, is now a divisible penaltywith a duration from 20 years and one (1) day to 40 years, in accordance with Article 27 of theRevised Penal Code, as amended by Republic Act No. 7659.Consequently, the penalty of reclusion perpetua to death should at present be deemed to fallwithin the purview of the penalty prescribed which does not have one of the forms speciallyprovided for in the Revised Penal Code, the periods of which shall be distributed, applying byanalogy the prescribed rules, in line with Article 77 of the Revised Penal Code. Pursuant to thisprinciple, the penalty of reclusion perpetua to death shall have the following periods: Death, asthe maximum; thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty(20) years and one (1) day to thirty (30) years, as the minimum.As there is no mitigating or aggravating circumstance shown to have attended the commission ofthe offense charged against Gatward, the penalty to be imposed on him shall be within the rangeof the medium period. On the other hand, since U Aung Win is favored by one mitigatingcircumstance without any aggravating circumstance to be taken against him, the penalty whichmay be imposed on him shall be within the range of the minimum period. (Art. 64(1) & (2),Revised Penal Code)The accused in these cases may not enjoy the benefit of Act No. 4103, the IndeterminateSentence Law, for under Section 2 of the said Act, its provisions shall not apply to thoseconvicted of offenses punished with life imprisonment, which has been interpreted by theSupreme Court as similar to the penalty of reclusion perpetua as far as the non-application of theIndeterminate Sentence Law is concerned. (People vs. Simon, G.R. No. 93028, July 29, 1994)[5] On those considerations, the trial court handed down its verdict on March 3, 1995 findingboth accused guilty as charged, thus:WHEREFORE, in Criminal Case No. 94-6268, accused Nigel Richard Gatward is found guiltybeyond reasonable doubt of transporting, without legal authority therefor, 5,237.70 grams ofheroin, a prohibited drug, in violation of Section 4 of Republic Act No. 6425, otherwise known asthe Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659; and there being noaggravating or mitigating circumstance shown to have attended the commission of the crime, heis sentenced to suffer the penalty of imprisonment for thirty-five (35) years of reclusionperpetua and to pay a fine of Five Million Pesos (P5,000,000.00).In Criminal Case No. 94-6269, accused U Aung Win is found guilty beyond reasonable doubt ofimporting or bringing into the Philippines 5,579.80 grams of heroin, a prohibited drug, withoutbeing authorized by law to do so, contrary to Section 3 of Republic Act No. 6425, the DangerousDrugs Act of 1972, as amended by Republic Act No. 7659; and in view of the presence of one (1)mitigating circumstance of voluntary plea of guilty, without any aggravating circumstance tooffset it, he is sentenced to suffer the penalty of imprisonment for twenty-five (25) yearsof reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000.00).The heroin involved in these cases is declared forfeited in favor of the government and orderedturned over to the Dangerous Drugs Board for proper disposal.With costs de oficio.[6] It is apropos to mention at this juncture that during the pendency of this appeal, and whileawaiting the filing of appellants brief on an extended period granted to his counsel de parte, theCourt received on September 5, 1995 a mimeographed form of a so-called Urgent Motion toWithdraw Appeal. It bears the signature of appellant but without the assistance or signature ofhis counsel indicated thereon. No reason whatsoever was given for the desired withdrawal andconsidering the ambient circumstances, the Court resolved on September 27, 1995 to deny thesame for lack of merit.[7] On June 10, 1996, a letter was received from one H.M. Consul M.B. Evans of the BritishEmbassy, Consular Section, Manila, seeking an explanation for the aforesaid resolution and withthe representation that a convicted person who did not, on reflection, wish to continue with anappeal would not need to prove merit but could simply notify the courts of his wish to withdrawand that would be the end of the matter. To be sure, this is not the first time that members offoreign embassies and consulates feel that they have a right to intrude into our judicial affairsand processes, to the extent of imposing their views on our judiciary, seemingly oblivious orarrogantly disdainful of the fact that our courts are entitled to as much respect as those in theirown countries. Such faux pas notwithstanding, a reply was sent to Mr. Evans informing him that, whilethere is no arrangement whereby a foreign consular officer may intervene in a judicial proceedingin this Court but out of courtesy as enjoined in Republic Act No. 6713, the unauthorizedpleading of appellant was made under unacceptable circumstances as explained in said reply;that it is not mandatory on this Court to dismiss an appeal on mere motion of an appellant; thatthe Court does not discuss or transmit notices of judicial action except to counsel of the parties;and that, should he so desire, he could coordinate with appellants counsel whose address wasfurnished therein.[8] In a resolution dated June 19, 1996, appellants counsel was ordered to show cause why heshould not be disciplinarily dealt with or held for contempt for his failure to file appellantsbrief. On July 24, 1996, said counsel and the Solicitor General were required to comment on theaforestated motion of appellant to withdraw his appeal, no brief for him having yet beenfiled. Under date of September 6, 1996, the Solicitor General filed his comment surprisingly tothe effect that the People interposed no objection to the motion to withdraw appeal. Appellantscounsel, on the other hand, manifested on November 4, 1996 that he was willing to file the briefbut he could not do so since appellant asked for time to consult his pastor who would laterinform said counsel, but neither that pastor nor appellant has done so up to the present. It would then be worthwhile to restate for future referential purposes the rules in criminalcases on the withdrawal of an appeal pending in the appellate courts. The basic rule is that, inappeals taken from the Regional Trial Court to either the Court of Appeals or the Supreme Court,the same may be withdrawn and allowed to be retracted by the trial court before the records ofthe case are forwarded to the appellate court. [9] Once the records are brought to the appellatecourt, only the latter may act on the motion for withdrawal of appeal. [10] In the Supreme Court,the discontinuance of appeals before the filing of the appellees brief is generally permitted.[11] Where the death penalty is imposed, the review shall proceed notwithstanding withdrawal ofthe appeal as the review is automatic and this the Court can do without the benefit of briefs orarguments filed by the appellant.[12] In the case at bar, however, the denial of the motion to withdraw his appeal by hereinappellant is not only justified but is necessary since the trial court had imposed a penalty basedon an erroneous interpretation of the governing law thereon. Thus, in People vs. Roque,[13] theCourt denied the motion of the accused to withdraw his appeal, to enable it to correct thewrongful imposition by the trial court of the penalty ofreclusion temporal to reclusion perpetua forthe crime of simple rape, in clear derogation of the provisions of Article 335 of the Revised PenalCode and the Indeterminate Sentence Law. Similarly, in another case,[14] the motion to withdrawhis appeal by the accused, whose guilt for the crime of murder was undeniable and for which heshould suffer the medium period of the imposable penalty which is reclusion perpetua, was notallowed; otherwise, to permit him to recall the appeal would enable him to suffer a lesserindeterminate sentence erroneously decreed by the trial court which imposed the minimum ofthe penalty for murder, that is, reclusion temporal in its maximum period. In the cases at bar, the same legal obstacle constrained the Court to deny appellants motionto withdraw his appeal. The trial court had, by considering reclusion perpetua as a divisiblepenalty, imposed an unauthorized penalty on both accused which would remain uncorrected ifthe appeal had been allowed to be withdrawn. In fact, it would stamp a nihil obstantium on apenalty that in law does not exist and which error, initially committed by this Court in anothercase on which the trial court relied, had already been set aright by this Court. 3. As amended by Republic Act No. 7659, the respective penalties imposable under Sections3 and 4 of the Dangerous Drugs Act, in relation to Section 20 thereof, would range from reclusionperpetua to death and a fine of P500,000.00 to P10,000,000.00 if the quantity of the illegal druginvolved, which is heroin in this case, should be 40 grams or more. In the same amendatory law,the penalty of reclusion perpetua is now accorded a defined duration ranging from twenty (20)years and one (1) day to forty (40) years, through the amendment introduced by it to Article 27 ofthe Revised Penal Code. This led the trial court to conclude that said penalty is now divisible in nature, and that(c)onsequently, the penalty of reclusion perpetua to death should at present be deemed to fallwithin the purview of the penalty prescribed which does not have one of the forms speciallyprovided for in the Revised Penal Code, and the periods of which shall be distributed by ananalogous application of the rules in Article 77 of the Code.Pursuant to its hypothesis, thepenalty of reclusion perpetua to death shall have the following periods: death, as the maximum;thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty (20) years and one(1) day to thirty (30) years, as the minimum.[15] We cannot altogether blame the lower court for this impass'e since this Court itselfinceptively made an identical misinterpretation concerning the question on the indivisibilityof reclusion perpetua as a penalty. In People vs. Lucas,[16] the Court was originally of the view thatby reason of the amendment of Article 27 of the Code by Section 21 of Republic Act No. 7569,there was conferred upon said penalty a defined duration of 20 years and 1 day to 40 years; butthat since there was no express intent to convert said penalty into a divisible one, there havingbeen no corresponding amendment to Article 76, the provisions of Article 65 could be applied byanalogy. The Court then declared thatreclusion perpetua could be divided into three equalportions, each portion composing a period. In effect, reclusion perpetua was then to be consideredas a divisible penalty. In a subsequent re-examination of and a resolution in said case on January 9, 1995,occasioned by a motion for clarification thereof,[17] the Court en banc realized the misconception,reversed its earlier pronouncement, and has since reiterated its amended ruling in threesucceeding appellate litigations.[18] The Court, this time, held that in spite of the amendmentputting the duration of reclusion perpetua at 20 years and 1 day to 40 years, it should remain asan indivisible penalty since there was never any intent on the part of Congress to reclassify it intoa divisible penalty. This is evident from the undisputed fact that neither Article 63 nor Article 76of the Code had been correspondingly altered, to wit: Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of theRevised Penal Code would lose its reason and basis for existence. To illustrate, the first paragraphof Section 20 of the amended R.A. No. 6425 provides for the penalty of reclusion perpetuato deathwhenever the dangerous drugs involved are of any of the quantities stated therein. If Article 63 ofthe Code were no longer applicable because reclusion perpetua is supposed to be a divisiblepenalty, then there would be no statutory rules for determining when either reclusion perpetua ordeath should be the imposable penalty. In fine, there would be no occasion for imposing reclusionperpetua as the penalty in drug cases, regardless of the attendant modifying circumstances. This problem revolving around the non-applicability of the rules in Article 63 assumesserious proportions since it does not involve only drug cases, as aforesaid. Under the amendatorysections of R.A. No. 7659, the penalty of reclusion perpetua to death is also imposed on treasonby a Filipino (Section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6),kidnapping and serious illegal detention (Section 8), robbery with homicide (Section 9),destructive arson (Section 10), rape committed under certain circumstances (Section 11), andplunder (Section 12). In the same resolution, the Court adverted to its holding in People vs. Reyes, [19] that whilethe original Article 27 of the Revised Penal Code provided for the minimum and the maximumranges of all the penalties therein, from arresto menor to reclusion temporal but with theexceptions of bond to keep the peace, there was no parallel specification of either the minimumor the maximum range of reclusion perpetua. Said article had only provided that a personsentenced to suffer any of the perpetual penalties shall, as a general rule, be extended pardonafter service thereof for 30 years. Likewise, in laying down the procedure on successive service ofsentence and the application of the three-fold rule, the duration of perpetual penalties iscomputed at 30 years under Article 70 of the Code. Furthermore, since in the scales of penalties provided in the Code, specifically those inArticles 25, 70 and 71, reclusion perpetua is the penalty immediately higher than reclusiontemporal, then its minimum range should by necessary implication start at 20 years and 1 daywhile the maximum thereunder could be co-extensive with the rest of the natural life of theoffender. However, Article 70 provides that the maximum period in regard to service of thesentence shall not exceed 40 years. Thus, the maximum duration of reclusion perpetua is not and has never been 30 years whichis merely the number of years which the convict must serve in order to be eligible for pardon orfor the application of the three-fold rule. Under these accepted propositions, the Court ruled inthe motion for clarification in the Lucas case that Republic Act No. 7659 had simply restatedexisting jurisprudence when it specified the duration ofreclusion perpetua at 20 years and 1 dayto 40 years. The error of the trial court was in imposing the penalties in these cases based on the originaldoctrine in Lucas which was not yet final and executory, hence open to reconsideration andreversal. The same having been timeously rectified, appellant should necessarily suffer the entireextent of 40 years of reclusion perpetua, in line with that reconsidered dictum subsequentlyhanded down by this Court. In passing, it may be worth asking whether or not appellantsubsequently learned of the amendatory resolution of the Court under which he stood to serveup to 40 years, and that was what prompted him to move posthaste for the withdrawal of hisappeal from a sentence of 35 years. 4. The case of U Aung Win ostensibly presents a more ticklish legal poser, but that is notactually so. It will be recalled that this accused was found guilty and sentenced to suffer thepenalty of reclusion perpetua supposedly in its minimum period, consisting of imprisonment for25 years, and to pay a fine of P1,000,000.00. He did not appeal, and it may be contended thatwhat has been said about the corrected duration of the penalty of reclusion perpetua which wehold should be imposed on appellant Gatward, since reclusion perpetua is after all an indivisiblepenalty, should not apply to this accused. Along that theory, it may be asserted that the judgment against accused U Aung Win hasalready become final. It may also be argued that since Section 11(a) of Rule 122 provides that anappeal taken by one accused shall not affect those who did not appeal except insofar as thejudgment of the appellate court is favorable and applicable to the latter, our present dispositionof the correct duration of the penalty imposable on appellant Gatward should not affect accusedU Aung Win since it would not be favorable to the latter. To use a trite and tired legal phrase,those objections are more apparent than real. At bottom, all those postulations assume that the penalties decreed in the judgment of thetrial court are valid, specifically in the sense that the same actually exist in law and areauthorized to be meted out as punishments. In the case of U Aung Win, and the same holds truewith respect to Gatward, the penalty inflicted by the court a quo was a nullity because it wasnever authorized by law as a valid punishment. The penalties which consisted of aliquot one-third portions of an indivisible penalty are self-contradictory in terms and unknown in penallaw. Without intending to sound sardonic or facetious, it was akin to imposing the indivisiblepenalties of public censure, or perpetual absolute or special disqualification, or death in theirminimum or maximum periods. This was not a case of a court rendering an erroneous judgment by inflicting a penalty higheror lower than the one imposable under the law but with both penalties being legally recognizedand authorized as valid punishments. An erroneous judgment, as thus understood, is a validjudgment.[20] But a judgment which ordains a penalty which does not exist in the catalogue ofpenalties or which is an impossible version of that in the roster of lawful penalties is necessarilyvoid, since the error goes into the very essence of the penalty and does not merely arise from themisapplication thereof. Corollarily, such a judgment can never become final and executory. Nor can it be said that, despite the failure of the accused to appeal, his case was reopened inorder that a higher penalty may be imposed on him. There is here no reopening of the case, as infact the judgment is being affirmed but with a correction of the very substance of the penalty tomake it conformable to law, pursuant to a duty and power inherent in this Court. The penaltyhas not been changed since what was decreed by the trial court and is now being likewiseaffirmed by this Court is the same penalty of reclusion perpetua which, unfortunately, wasimposed by the lower court in an elemental form which is non-existent in and not authorized bylaw. Just as the penalty has not been reduced in order to be favorable to the accused, neither hasit been increased so as to be prejudicial to him. Finally, no constitutional or legal right of this accused is violated by the imposition upon himof the corrected duration, inherent in the essence and concept, of the penalty. Otherwise, hewould be serving a void sentence with an illegitimate penalty born out of a figurative liaisonbetween judicial legislation and unequal protection of the law. He would thus be the victim of aninadvertence which could result in the nullification, not only of the judgment and the penaltymeted therein, but also of the sentence he may actually have served. Far from violating any rightof U Aung Win, therefore, the remedial and corrective measures interposed by this opinionprotect him against the risk of another trial and review aimed at determining the correct period ofimprisonment. WHEREFORE, the judgment of the court a quo, specifically with regard to the penalty imposed onaccused-appellant Nigel Richard Gatward in Criminal Case No. 94-6268 and that of accused U Aung Winin Criminal Case No. 94-6269, is hereby MODIFIED in the sense that both accused are sentenced to servethe penalty of reclusion perpetua in its entire duration and full extent. In all other respects, said judgmentis hereby AFFIRMED, but with costs to be assessed against both accused in all instances of these cases.